Is gambling a crime?

My PartyPoker account

Considering the numerous controversial federal actions that have occurred during the Bush II administration, none has affected my daily activity (at least with regard to my free time) more than the passage of the SAFE Port Act. Although the title suggests a codification of security programs intended to improve security at U.S. ports, it also included an unrelated provision that criminalizes the transfer of funds from financial institutions to internet gambling sites. Since the majority of the bill relates to national security, it passed through both houses of Congress unopposed even though no one on the Senate-House Conference Committee had read the final language. President Bush signed it into law two weeks later. Within days, PartyPoker.com had closed all of its U.S. accounts, restricting my poker play to a friendly Friday night tournament. Even beyond this personal inconvenience, I fail to comprehend the theoretical or legal rationales that criminalize certain forms of gambling.

A “victimless crime”

Gambling seems to be a victimless crime—behavior that is forbidden by law, but that neither violates nor threatens the rights of others. For whatever reasons, many consider the exchange of money for sex malum in se, a transaction so incompatible with social mores that criminal penalty should befall those who engage in it. However, this public order argument does not easily translate to the gambling context, as the act in itself seems morally neutral. Illegality aside, a consensual bet that the Giants would beat the Patriots, that Tiger would win the Buick Open, or that England would qualify for the European Cup has more to do with sports fanaticism or expected financial gain than morality.

The notion that someone can obtain money without “working” for it may represent one theoretical argument against legalized gambling. With regards to skilled gambling, this reasoning merely amounts to a disagreement about the definition of “work”. The technical and fundamental analyses performed by professional sports bettors are remarkably similar to those of investment bankers. Sitting at a table for all hours of the day at a poker tournament probably requires more mental and physical stamina than an extended doc review. With regards to gambling that is based entirely on luck, participants in these games are not engaged in activity that can properly be classified as work. In addition, pure-luck gambling in the form of state lotteries, church bingo, and charity raffles is the type least frequently criminalized in the U.S.

Drawing boundaries

In fact, the arguments in favor of the criminalization of gambling are premised on the effects of gambling behavior rather than the act itself. Typically gambling, especially of the compulsive variety, is tied to a host of other criminal and anti-social behaviors: poverty and bankruptcy; depression and suicide; organized crime; theft and burglary. Assuming for the sake of argument that the data supporting this causation is accurate, these are real social costs with burdens that extend beyond the gambler himself. But that still does not mean that gambling should be criminalized. This rationale fails to distinguish between the act of consensual gambling and the alleged secondary effects. If gamblers tend to embezzle, steal, or participate in organized crime, there are criminal statutes that penalize those behaviors. If gamblers tend to fall behind on their bills, then there are appropriate civil remedies for collection. Even if these negative effects of gambling are legitimate, criminalization is a premature and imperfect policy response. Only once someone has chosen to commit one of these secondary crimes or harms should he be punished or treated for them. Alternatively criminalization of gambling could be viewed as a penalty on an entire class of people when only a subset of that class commits morally offensive behavior. This would be an obvious violation of Due Process.

Policy considerations

Traditionally, criminal liability has been described as serving retributive or utilitarian aims of the legal system. The loss of freedom and stigmatization imposed by the state on criminals represent serious penalties that require sound justification. However, criminalized gambling accomplishes neither of these goals satisfactorily. The retributive view argues that the criminal’s wrongdoing in itself merits punishment. But under this theory, acts that involve no moral wrongdoing, like gambling, should not be punished.

Alternatively, utilitarians contend that punishment should be applied only to the extent that it increases net social welfare. Under this view, punishment itself imposes costs on society, and unless these are outweighed by corresponding benefits, it is unjustified. One such benefit might be incapacitation, removing those with criminal tendencies from society at large. Another utilitarian utilitarian benefit of punishment is the deterrence from committing future crimes by that individual or society in general. Admittedly criminalization is strong medicine for the casual or recreational gambler. Professionals probably move to jurisdictions where it is legalized. But, as previously argued, gambling in itself is amoral. The rationale in favor of criminalization supports curbing its effects rather than the act itself. It would be more efficient, equitable, and transparent to address those anti-social activities directly.

A third utilitarian benefit might be rehabilitation. Compulsive gambling is a cognizable psychological disorder that merits treatment; criminalization is probably the least effective means of providing it. Prohibiting gambling forces compulsive gamblers to support their addiction under less scrutiny. They are therefore more difficult to identify and treat. If regulation rather than criminalization is employed, government could impose any number of restrictions on sportsbooks or casinos—both actual and electronic—that could reduce or remedy the addiction.

Conclusion

Apart from the moral and theoretical considerations outlined above, the criminalization of particular forms of gambling is simply hypocritical since it is sanctioned and promoted in other guises. State lotteries represent gambling with worse odds than one could find in any casino. New Jersey allows gambling in Atlantic City but not the rest of the state. Many other states allow betting on horse races but no other sports. Insurance companies and financial institutions are fundamentally trillion dollar gambling industries. Government policy towards gambling, especially regarding criminalization, is clearly inconsistent, misguided and ultimately deleterious.

You begin with a rule prohibiting money transfers and end by asking about the legitimacy of rules against gambling. It seems more reasonable to ask about the legitimacy of the rules against money transferring. On this point, of course, you couldn't just restate the libertarian case against gambling regulation. You could give the stereotypical libertarian case against taxes, too, but that's not really respectable anymore. So the authority to control currency and banking transactions--which can plainly be used for purposes more expedient and unprincipled than are involved here--cannot be employed for this purpose or purposes? That would require some real analysis, which this draft owes us.